Legislated Rights as Trumps: Why the Notwithstanding Clause Overrides Judicial Review

This article argues that the Charter's notwithstanding clause makes exception to judicial review. In the counter-factual world where laws "shall operate" as they "would have but for" Charter provisions, courts may not question the consistency of laws with selected Charter rights. Courts must legally treat such laws as though selected Charter provisions do not exist to be applied to them; but of course, they continue to exist. Because the provisions do exist, judgements about their consistency with statutes invoking section 33 are left to the political process. This reading is grounded in the subjunctive mood (conditionnel passé) of the text. It aligns with Alan Blakeney's and Peter Lougheed's historical purpose for the clause in 1982: to allow legislated rights as trumps against judicial review. This is justifiable as a matter of political morality because it offers a standard for holding legislators accountable for using the clause to protect rather than trump rights.